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Monday, February 4, 2013

“Shri N.V. Ramana - judge of the High Court of Andhra Pradesh,This writ petition seeks a writ in the nature of quo warranto, quashing the appointment of respondent No.3 as a judge of the High Court of Andhra Pradesh and a writ in the nature of mandamus commanding the Bar Council of Andhra Pradesh to cancel his enrolment as an advocate. - It is indeed very important to uphold the “institutional integrity” of the court system as pointed out in the CVC judgment and as strongly advocated by Mr. Shanti Bhushan, but it is equally important to protect the court from uncalled for attacks and the individual judges from unjust infliction of injuries. In light of the discussions made above, we find this writ petition not only without merit but also wanting in bona fides. It is, accordingly, dismissed with costs of Rs.50,000/- payable by each of the two petitioners. The cost amount must be deposited in a fund for the welfare of the employees of the Andhra Pradesh High Court within four weeks from today.


REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO.174 OF 2012


M. MANOHAR REDDY & ANR.                 … PETITIONERS

                                   VERSUS

UNION OF INDIA & ORS.                   … RESPONDENTS


                               J U D G M E N T


Aftab Alam, J.

1.    The two petitioners, who are advocates of the  High  Court  of  Andhra
Pradesh, have filed this petition under Article 32 of  the  Constitution  of
India, purportedly in public interest.
This writ petition seeks a  writ  in
the nature of quo warranto, 
quashing the appointment of respondent  No.3  as a judge of the High Court of Andhra Pradesh and a  writ  in  the  nature  of mandamus commanding  the  Bar  Council  of  Andhra  Pradesh  to  cancel  his enrolment as an advocate. 

The quashing  of  the  appointment  of  respondent
No.3 as a judge of  the  High  Court  is  sought  on  the  ground  that  the
consultation process leading to his appointment was  vitiated  as  both  the
High Court and the Supreme Court Collegia as well as the Central  Government
failed  to  consider  two  essential  facts;
one,  at  the  time   of   his
appointment, a criminal trial was pending in which respondent No.3  was  notonly an accused but a proclaimed offender and 
the other  that  
even  at  the time of  his  enrolment  as  an  advocate  he  had  concealed  the  criminal proceedings and in the relevant column  of  the  application  for  enrolment with the  Bar  Council,  he   falsely  stated  that  there  was  no  pending proceeding against him.
2.    In order to put the  petitioners’  challenge  to  the  appointment  of
respondent No.3 as a judge of the High Court in the proper  perspective,  it
will be useful to give here a brief outline of the relevant facts.
3.    The name of respondent No.3  was  recommended  for  appointment  as  a
judge of the Andhra Pradesh High Court on November 14,  1998  by  the  Chief
Justice of the High Court with the  other  two  Collegium  members  agreeing
with the recommendation.  
The recommendation made  by  the  High  Court  was
received in the Supreme Court on February 15, 1999. 
At that time the age  of
respondent No.3 was 41 years and six months and he  had  completed  over  15
years of legal practice. 
In the resume prepared by the Ministry of  Law  and
Justice that  came  to  be  put  up  before  the  Supreme  Court  Collegium,
respondent No.3 was described as under:
      “Shri N.V. Ramana, Advocate:
      BIO-DATA
                 He was enrolled as an Advocate on February  10,  1983.  He
      has practiced in the High Court of Andhra Pradesh, Central and  Andhra
      Pradesh Administrative Tribunals and the Supreme  Court  of  India  in
      Civil, Criminal, Constitutional, Labour, Service and Election matters.
       He has specialized in Constitutional, Criminal,  Service  and  Inter-
      State River laws.  He has handled about  800  cases  during  the  last
      three years. He has functioned as Panel Counsel for Andhra Bank,  Vysa
      Bank, United India Insurance Co. and Food Corporation of India. He has
      also functioned as Additional Standing Counsel for Central  Government
      and Standing  Counsel  for  Railways  in  the  Central  Administrative
      Tribunal at Hyderabad.  At present he  is  functioning  as  Additional
      Advocate General of Andhra Pradesh. His professional income during the
      last three years was as tabulated below:


      Year        Gross Income          Taxable Income


      1996-97          7,87,210               2,21,200
      1997-98            10,31,465            3,68,950
      1998-99            38,95,973              16,94,928”


And the Intelligence Bureau report about him stated as under:

           “I.B. REPORT:
           He enjoys good  personal/professional  image.   Nothing  adverse
      against his character, reputation and integrity has come to notice, so
      far. He has also not come to  notice  for  links  with  any  political
      party/communal organization.


           None of his relatives is either serving or has served earlier as
      judge in any High Court or Supreme Court.”




4.      Following   the   consultative   process   between   the   different
constitutional functionaries, a notification was issued  on  June  19,  2000
appointing respondent No.3 as a judge of the Andhra Pradesh High  Court  and
respondent No.3 took the oath and assumed the  office  as  a  judge  of  the
Andhra Pradesh High Court on June 27, 2000. Since then  he  is  continuously
working in that capacity.
5.     It  now  comes  to  light  that  all  through  the  period  when  the
recommendation was made for his appointment as a judge and the  notification
was issued and he assumed the  office  as  a  judge,  a  criminal  case  was
pending  in  which  respondent  No.3  was  an  accused.
It  is,  therefore,
necessary to look into the criminal case and its proceedings.
The  criminal
case in question dates back to the year 1981  when  respondent  No.3  was  a
student  of  Nagarjuna  University.
The  students  of  the  University,  it
appears, complained of inadequate public transport facilities for  commuting
from their homes to the University  as  only  a  few  buses  plying  between
Guntur and Vijayawada stopped at the University.
They  demanded  that  more
buses should stop at the University. As is not uncommon with  the  youth  in
this country, some of the students of the University took  to  agitation  in
connection with the demand and at about 8.30 p.m. on February  13,  1981,  a
group of about 30 students  put  road  blocks  on  the  GNT  road,  opposite
Nagarjuna University, causing stoppage of  all  vehicles  on  the  road.  At
about 9.15 p.m., a bus of the State Transport Corporation, on its  way  from
Guntur to Vijayawada, arrived there when there was already a heavy  jam  and
pulled up at the road flank.
In such situations, unfortunately a  State  bus
is the softest and the most vulnerable target. In this case also  the  State
bus became the target of the agitating students’ ire. The driver of the  bus
was pulled down and  the  door  to  the  driver’s  seat  was  damaged.  Some
miscreants pelted stones on the bus and smashed  its  windscreen  and  glass
windows with iron rods. One of the passengers also received  some  injuries.
By this time a police party also  came  to  the  spot.
At  this  stage,  an
attempt was made to set fire to the bus by  throwing  a  burning  oil  cloth
tied to a rod inside the bus. But, a policeman put  out  the  burning  cloth
and the bus was saved  from  any  further  damage.  Shortly  thereafter  the
police dispersed the agitating students and restored normalcy. On  the  same
day at 11.00 p.m. the driver of the bus lodged a  first  information  report
in connection with the incident at Mangalagiri Police Station where  it  was
registered as Crime No. 55 of 1981 under Sections 147, 342, 427 and  324  of
the Penal Code. The FIR was against unknown persons  and  the  accused  were
described as “Nagarjuna University students”.
6.    The police after investigation drew up a charge  sheet  dated  October
10, 1983 and on October 19, 1983 submitted it in the  court  of  the  Munsif
Magistrate, Mangalagiri where it was registered as  C.C.  No.229/1983. 
 From
the charge sheet it appears that in their statements recorded under  Section
161 of the Code of Criminal Procedure, the Driver and the Conductor  of  the
bus (apart from some other witnesses) identified and named five  persons  as
the student- leaders who were leading the agitation on  February  13,  1981.
The charge sheet, accordingly, cited five persons as accused and  respondent
No.3 figured among them at serial No. 4.  All  the  accused  were  shown  as
absconders. 
The charge sheet, however, does not  disclose  what  steps  were
taken by the investigating officer to secure the presence  of  the  accused.
There is no mention that the investigating  officer  ever  tried  to  obtain
from the court warrants of arrest or processes under Sections 82 and  83  of
the Code of Criminal Procedure  for  apprehending  the  accused.  
They  were
simply shown as absconders without observing  the  procedure  sanctioned  by
law before an accused can be called an absconder.
7.    The fact of the matter, however, is that  this  Crime  Case  No.229/83
(later re-numbered as CC No.75/87 and  then  CC  No.167/91)  was  undeniably
pending at the time of appointment of respondent No.3  as  a  judge  of  the
High Court and it is  contended  on  behalf  of  the  petitioners  that  the
failure to take into account the pendency of the  criminal  case  while  his
name was recommended by the High Court Collegium and  approval  and  consent
was accorded by the Supreme Court Colllegium and the Central Government  for
his  appointment  as  a  judge  of  the  High  Court   deeply   flawed   the
participatory consultative process as envisaged in  Article  217(1)  of  the
Constitution and as developed by the decisions  of  this  Court  in  Supreme
Court Advocates-on–Record Association[1] and later on in  Special  Reference
No. 1 of  1998[2].
It  is  submitted  the  appointment  of  the  respondent
resulting from a consultation process that failed to take  into  account  an
important and relevant fact  was  completely  illegal  and  was,  therefore,
liable to be quashed by a writ of quo warranto. The respondent had no  right
to hold the office of a High Court judge and this  Court  must  step  in  to
correct the grave error committed by his appointment.
8.    It needs to be noted  here  that  the  learned  Attorney  General  was
requested to address the Court on the question of  maintainability  of  this
writ petition that seeks a writ, quashing the appointment of a judge of  the
High Court.
The Attorney General submitted that the writ  petition  was  not
maintainable and was liable to be dismissed  summarily.
He  submitted  that
the  prayer  for  a  writ  of  quo  warranto  quashing  the  appointment  of
respondent No.3 was only a camouflage and what the petitioners really  aimed
at was the removal of the judge who had  been  in  office  for  over  twelve
years.
The removal of a judge in office, the  Attorney  maintained,  was  an
issue directly related to the independence of judiciary that is  fundamental
to the Constitutional scheme. 
The Attorney pointed  out  that  in  order  to
make the judiciary independent and to make it possible  for  the  judges  to
discharge their duties  without  fear  or  favour  the  Constitution  firmly
secured the tenure of a judge and  granted  that  a  judge  of  any  of  the
superior courts could only be  removed  from  office  on  the  basis  of  an
impeachment motion passed  by  the  Parliament  as  provided  under  Article
124(4) (in the case of a judge of the Supreme Court) and  Article  217  read
with Article 124(4) (in the  case  of  a  judge  of  the  High  Court).
The
Constitution did not recognize any other mode for the removal  of  a  judge.
Any deviation from the Constitutional process in the garb  of  quashing  the
appointment by a writ of quo warranto would be violative of  the  scheme  of
the Constitution and deleterious for the independence of the  judiciary.
He
further submitted that if the petitioners thought that  the  appointment  of
respondent No.3 as a judge of the Andhra Pradesh High Court  was  wrong  and
there were grounds for his removal from the office, they could always  bring
the  matter  to  the  notice  of  the  Parliament  which   alone   was   the
Constitutional forum competent to remove a judge of the High Court from  his
office  from  any  misbehaviour  committed  either  before  or   after   his
appointment as a judge.
He added that in case  the  Parliament  declined  to
take any action for the removal of the judge on the  petitioner’s  complaint
the Court was powerless in the matter and the removal  of  the  judge  could
not be brought about by the device of quashing his appointment. He  went  so
far as to say that in entertaining this writ petition on  merits  the  Court
would be overstepping its Constitutional limits.
9.     Mr.  Shanti  Bhushan,  learned  senior  advocate  appearing  for  the
petitioners, on the other hand, submitted  that  writ  petition  raised  the
issue of inviolability and credibility of appointment to the high office  of
the High Court judge. He further submitted that the Court must not  be  seen
as protecting someone wrongly appointed as a judge of the  High  Court  for,
the people’s faith and trust and confidence in the  courts  and  the  judges
presiding over the courts was as much necessary to support the  independence
of judiciary as the guarantees under the  Constitution  and  the  laws.  Mr.
Shanti Bhushan further submitted that in the past also similar  issues  came
before the Court and the Court never declined to examine the merits  of  the
case and passed appropriate orders.
 In support of the submission, he  relied
upon the decisions of this Court in (i) Shri Kumar Padma Prasad v. Union  of
India[3], (ii) Shanti Bhushan v. Union of India[4] and (iii) Mahesh  Chandra
Gupta v. Union of India[5].
10.   The second case cited by Mr. Shanti Bhushan is one  which  he  himself
had filed as public interest litigation, assailing the extension granted  to
respondent No.2 in that case as an  Additional  Judge  of  the  Madras  High
Court.  He relied upon paragraph 25 of the judgment in  that  case  but,  we
fail to see anything in that decision that may serve as an authority on  the
question of maintainability of a writ petition for quashing the  appointment
of a judge after many years of his assuming the office.
11.   However, the first and the  third  case  relied  upon  by  Mr.  Shanti
Bhushan deserve consideration.
12.   In Shri Kumar Padma Prasad, the Court dealt with a writ petition  that
was  filed  originally  before  the  Gauhati  High  Court  but   was   later
transferred and brought to this Court. The writ petition was  filed  at  the
stage where though the warrant had been issued under the hand  and  seal  of
the President of India, appointing one of  the  respondents  in  that  case,
namely, K.N. Srivastava as a judge of the Gauhati High Court, he  was  still
to make  and  subscribe  the  oath/affirmation  under  Article  219  of  the
Constitution. This means that he had not entered  upon  the  office  of  the
judge and the writ petition was filed before  the  matter  had  reached  the
stage of Article 217 as the person whose  appointment  was  under  challenge
was yet to assume the office of the judge. In that case  this  Court  indeed
stepped in to interfere and to  stop  the  appointment  from  materializing.
This Court found and held that on the date of issue of the  warrant  by  the
President of India K.N. Srivastava was not qualified to be  appointed  as  a
judge of the High Court. It,  accordingly,  quashed  his  appointment  as  a
judge of the Gauhati High Court and directed the  Union  of  India  and  the
other concerned respondents not to administer the oath or affirmation  under
Article 219 of the Constitution to K.N.  Srivastava.   K.N.  Srivastava  was
similarly restrained from making and subscribing the oath or affirmation  in
terms of Article 219 of the Constitution of  India.   It  is,  thus,  to  be
noted that the Court intervened in the matter before  the  person  concerned
had assumed the office of the judge on the ground that he was not  qualified
to be appointed as a judge or, in  other  words,  was  not  eligible  to  be
appointed as a judge.
13.   The concepts of “eligibility” and “suitability”  were  later  examined
by this Court in the decision in Mahesh Chandra Gupta (to which  one  of  us
Aftab Alam, J. was also a Member). In Mahesh Chandra  Gupta,  challenge  was
made to the appointment of a judge of the Allahabad  High  Court  after  the
incumbent  had  assumed  his  office.  In  the  writ  petition,  as  it  was
originally filed, the appointment was questioned only  on  the  ground  that
the incumbent did not possess the basic eligibility for being  appointed  as
a judge of the High Court. Later on, the appointment was also challenged  on
grounds of suitability and want of effective consultation process by  taking
additional pleas in supplementary affidavits. Kapadia, J. (as  His  Lordship
then was), speaking for  the  Court  brought  out  the  distinction  between
“eligibility” and “suitability” and pointed out that eligibility  was  based
on objective facts and it was, therefore, liable to  judicial  review.  But,
suitability pertained to the  realm  of  opinion  and  was,  therefore,  not
amenable to any judicial review. The Court also examined the class of  cases
relating to appointment of High Court judges that might fall under  judicial
scrutiny and concluded that  judicial  review  may  be  called  for  on  two
grounds namely, (i) “lack  of  eligibility”  and  (ii)  “lack  of  effective
consultation”. In paragraphs 39, 43 and 44 of the judgment the Court said:
           “39. At this  stage,  we  may  state  that,  there  is  a  basic
      difference between “eligibility” and  “suitability”.  The  process  of
      judging the fitness of a person to be appointed as a High Court  Judge
      falls  in  the  realm  of  suitability.  Similarly,  the  process   of
      consultation falls in the realm of suitability.  On  the  other  hand,
      eligibility at the threshold stage comes under Article 217(2)(b). This
      dichotomy between suitability and eligibility finds place  in  Article
      217(1) in juxtaposition to Article  217(2).  The  word  “consultation”
      finds place in Article 217(1) whereas the word “qualify”  finds  place
      in Article 217(2).


        43. One more aspect needs to be highlighted.  “Eligibility”  is  an
      objective factor. Who could be elevated is  specifically  answered  by
      Article 217(2). When “eligibility” is put in question, it  could  fall
      within the scope of judicial review. However, the question as  to  who
      should  be  elevated,  which  essentially  involves  the   aspect   of
      “suitability”, stands excluded from the purview of judicial review.


        44. At this stage, we may highlight the fact that there is a  vital
      difference between judicial review and merit review. Consultation,  as
      stated above, forms part of the procedure to test  the  fitness  of  a
      person to be appointed a High Court Judge under Article  217(1).  Once
      there is consultation, the content of that consultation is beyond  the
      scope of judicial review, though lack of effective consultation  could
      fall within the scope of judicial review. This is the basic  ratio  of
      the judgment of the Constitutional Bench  of  this  Court  in  Supreme
      Court Advocates-on-Record Assn. and Special Reference No. 1 of 1998.
                                       (emphasis added)


14.   In paragraphs 71 and 74 of the judgment again the  Court  observed  as
under:

      Justiciability of appointments under Article 217(1)


      71. In the present case, we  are  concerned  with  the  mechanism  for
      giving effect to the constitutional justification for judicial review.
      As  stated  above,  “eligibility”  is  a  matter   of   fact   whereas
      “suitability” is a matter of  opinion.  In  cases  involving  lack  of
      “eligibility” writ of quo warranto would  certainly  lie.  One  reason
      being that “eligibility” is not a  matter  of  subjectivity.  However,
      “suitability” or “fitness” of a person to be appointed  a  High  Court
      Judge: his character, his integrity, his competence and the  like  are
      matters of opinion.


        74. It is important to note that  each  constitutional  functionary
      involved in the participatory consultative process is given  the  task
      of discharging a participatory constitutional function;  there  is  no
      question of  hierarchy  between  these  constitutional  functionaries.
      Ultimately, the object  of  reading  such  participatory  consultative
      process into the constitutional scheme is  to  limit  judicial  review
      restricting it to specified areas by introducing a judicial process in
      making of appointment(s) to the higher judiciary. These are the norms,
      apart from modalities, laid down in Supreme Court  Advocates-on-Record
      Assn. and also in the judgment in Special Reference No. 1 of 1998, Re.
      Consequently, judicial review lies only in two cases, namely, “lack of
      eligibility” and “lack of effective consultation”. It will not lie  on
      the content of consultation.
                                        (emphasis added)
15.   In view of the decision in Mahesh Chandra Gupta, the  question  arises
whether or not the case in hand falls in any of the two categories that  are
open to judicial review. Admittedly, the eligibility of respondent  No.3  is
not an issue. Then, can the case be said to raise  the  issue  of  “lack  of
effective consultation”.
16.   Mr. Shanti Bhushan strongly argued that the consultation that  led  to
the appointment of respondent No.3 as the judge of the Andhra  Pradesh  High
Court was completely deficient for not taking  into  consideration  that  he
was accused in a pending criminal case and as a result, the  appointment  of
respondent No.3 was wholly vitiated and it was fit to  be  quashed  by  this
Court. In support of the submission Mr. Shanti Bhushan heavily  relied  upon
the decision of this Court in Centre for PIL and another v. Union  of  India
and another[6] (commonly  called  as  the  CVC  case).  Mr.  Shanti  Bhushan
submitted that in that case this Court had made institutional  integrity  as
part of eligibility criteria and had, thus, highly raised the  standards  of
qualification for appointment to a public office.
17.   In the CVC case a three judge  Bench  of  this  Court  held  that  the
recommendation for appointment of Shri P.J. Thomas as the Central  Vigilance
Commissioner was non-est in law and, consequently, quashed  his  appointment
to that post. The recommendation for appointment of  Shri  P.J.  Thomas  was
made, by a majority of 2:1, by a  committee  consisting  of  (i)  the  Prime
Minister, (ii) the  Minister  of  Home  Affairs  and  (iii)  The  Leader  of
Opposition in the House of the People (referred to in the  judgment  as  the
High-Powered Committee or the HPC). The Court held that  the  recommendation
was non-est because the HPC  had  failed  to  take  into  consideration  the
pendency of case No. 6 of 2003 (relating to the import of Palmolein  oil  by
the Kerala Government), in which  the  Government  of  Kerala  had  accorded
sanction for  the  prosecution  of  Shri  P.J.  Thomas  (among  others)  for
committing offences punishable under Section 120-B of the  Penal  Code  read
with Sections 13 (i) (d) of the Prevention of Corruption Act and  had  based
its recommendation entirely on the blanket  clearance  given  to  Shri  P.J.
Thomas by the CVC (then in office) and the fact that during the pendency  of
the criminal case Shri P.J. Thomas  was  appointed  as  Chief  Secretary  of
Kerala, then as the Secretary of Parliamentary Affairs and  subsequently  as
the Secretary, Telecom.
18.   At the first glance the CVC case appears to have some  parallels  with
the case in hand and in order to apply the decision in the CVC case  to  the
present case Mr. Shanti Bhushan extensively  cited  from  the  judgment  the
passages where this Court identified  the  CVC  as  an  institution  and  an
“integrity institution”, stressed the imperative to uphold and preserve  the
integrity of that institution  and  observed  that  the  recommendation  for
appointment as CVC should be not only with reference to  the  candidate  but
the overarching consideration should be the institutional integrity  of  the
office. (See paragraphs 34-37, 42, 43, 47,  59  and  89  of  the  judgment).

19.   We have given the most careful consideration to the CVC  decision  and
the submissions made by Mr. Shanti Bhushan on the basis  of  that  decision,
all the time bearing in mind that the Court must  not  overlook  or  condone
something that may have the effect of lowering down the  people’s  faith  or
trust in the judges or in courts. But we find that  though  there  are  some
superficial similarity between the CVC case and the case in  hand,  the  two
cases are quite different in their core issues and we find it impossible  to
justly apply the CVC decision to the facts of the case in hand.
20.   In the CVC case the HPC was not unaware of Shri P.J. Thomas  being  an
accused in a pending case for offences punishable under  Sections  120-B  of
the Penal Code read with Section 13(1)(d) of the  Prevention  of  Corruption
Act.  The recommendation that the HPC made  in  exercise  of  the  statutory
power under the proviso to Section 4 of  the  Central  Vigilance  Commission
Act, 2003 was in a sense  in  defiance  of  the  pending  trial  before  the
criminal court. The  genesis  and  the  developments  taking  place  in  the
criminal case are discussed in paragraph 8 to 21 of the judgment in the  CVC
case from which it appears that the institution of the case was preceded  by
the report of the Comptroller and Auditor General, followed  by  the  report
by the Public Undertaking Committee of the Kerala Assembly. On the basis  of
the reports,  at  least  two  writ  petitions  were  filed  (unsuccessfully)
seeking direction of the High Court for institution of a criminal case.  The
criminal case was finally filed after the new government came  to  power  in
the  State  following  the  election  on  May  20,  1996.  Even  after   the
institution of the case the matter had repeatedly gone  to  the  High  Court
and traveled up to this Court. The Government of Kerala  had  made  repeated
requests to the Central  Government  in  the  Department  of  Personnel  and
Training for grant of sanction for prosecution  of  Shri  P.J.  Thomas.  The
matter had gone to the Central  Vigilance  Commission  and  there  were  its
recommendations  on  record  for  initiation  of  disciplinary   proceedings
against Shri P.J. Thomas.  In  paragraph  44  of  the  judgment,  the  Court
pointed out that between 2000 and 2004 there were at  least  six  noting  of
the DoPT suggesting that penalty proceedings may be initiated  against  Shri
P.J. Thomas.
21.   In short, the fact about the pendency of the criminal  case  and  Shri
P.J. Thomas being one of the accused in the case was  writ  large  all  over
the record before the HPC.  The  fact  was  not  only  within  the  personal
knowledge of each of the three members of the  HPC  but  it  was  in  public
domain. Hence, the recommendation of the HPC was not  in  ignorance  of  the
criminal case.  The recommendation was for appointment of Shri  P.J.  Thomas
as the Central Vigilance Commissioner notwithstanding his being  an  accused
in the criminal case and the HPC appeared not to see the  criminal  case  as
any impediment in  the  way  of  his  appointment  as  the  Chief  Vigilance
Commissioner.
22.   Let us now examine  how  far  the  facts  of  the  present  case  bear
similarity to the CVC case.
23.   In the writ petition and in course of hearing of the  case  respondent
No.3 has been repeatedly called, a little loosely and  rather  uncharitably,
an “absconder” and a “proclaimed offender” in a case of robbery and  burning
down of a bus.
It is seen above that the criminal case in  question  had  no
element of robbery or bus burning. 
We may now examine how far it is  correct
to call respondent No.3 as an “absconder” and a “proclaimed offender”.
24.   It is noted above that the charge sheet was filed in the court of  the
Munsif Magistrate, Mangalagiri on October 19,  1983.   On  October  25,  the
Magistrate directed for issuance of summonses, fixing November 25,  1983  as
the date for hearing. The summonses, issued in pursuance of the  order,  are
on file marked as paper nos. 25 to 30, but they bear  no  endorsement  about
service.  At the reverse of summonses to accused 3 and 4,  it  is  mentioned
that they were studying in  B.L.,  First  Year,  Nagarjuna  University.  
On
November 25, 1983, the accused were not present in court. Their absence  was
recorded in the order-sheet and fresh summonses were directed to be  issued,
fixing December 23, 1983 as the date of hearing.
Whether  or  not  summonses
were issued in pursuance of the order is not known because  those  summonses
are not on the record. 
On December 23, 1983,  the  accused  were  again  not
present and summonses were again directed to be issued, fixing  January  25,
1984 for hearing.  
On January 25, 1984, the  accused  were  once  again  not
present and fresh  summonses  were  issued  fixing  February  15,  1984  for
hearing.  
The summonses are on the file marked as paper Nos. 31 to  36.  
The
case was then listed on a number of dates but the accused  did  not  appear.
Finally on November 27, 1985, accused 1 appeared in court but accused  2  to
5 were still not present. 
On January 9, 1987, the court ordered to  separate
the case of accused 2 to 5 and proceeded with the trial  of  accused  1.
On
June 2, 1987, statement of accused 1 was recorded under Section 251  of  the
Code of Criminal Procedure.
On March 1, 1988, the  statements  of  PW1  and
PW2, namely, S. Satyanarayanaraju and P. Peda Sivaiah (being the driver  and
conductor of the bus in question) were recorded.
It is significant  to  note
that neither  the  driver  nor  the  conductor  of  the  bus  (PW1  and  PW2 respectively), named or identified the accused who  had  attacked  the  bus.
The driver said that around 50 or 60 students  had  charged  at  them  in  a
group.
The conductor  said  that  when  the  driver  stopped  the  bus,  the
students came shouting and blocked the bus. He became afraid  and  ran  away
with the cash bag. The prosecution did not examine any  more  witnesses  and
on May 12, 1988, accused 1 was examined under Section 313  of  the  Code  of
Criminal Procedure.
Finally by judgment and order dated July  4,  1988,  the
trial court found accused 1 not guilty of the offences alleged  against  him
and acquitted him of the charges.
While  acquitting  him,  the  trial  judge
noted that the prosecution witnesses were not able to identify the  accused.
It was also noted that as per the FIR the incident  occurred  at  night  and
the bus was attacked by more than 50 persons and there was no material  with
regard to the identity of the culprits  who  attacked  the  bus  and  caused
damage. It was noted that the FIR does not mention the names of the  persons
who participated in the offence. It was also noted that  in  his  deposition
before the trial court PW2 (the bus conductor) denied having identified  the
accused in  his  statement  under  Section  161  of  the  Code  of  Criminal
Procedure.
25.   Let us now see the case relating to the other four accused,  including
accused 4, that is respondent No.3.
26.   It is noted above that on November 27, 1985 accused 1  alone  appeared
before the court. On March 5, 1986 the court ordered for  issuance  of  non-
bailable warrants against accused 2 to accused 5. The warrants  are  not  on
record and it is not known whether any  warrants  were  in  fact  issued  in
pursuance of the order. On January 9, 1987 the  court  ordered  to  separate
the case of accused 2 to accused  5.  After  the  case  was  separated,  the
record pertaining to accused 2 to accused 5 was registered as CC  No.  75/87
and was later renumbered as CC No. 167/91. From the order sheet  it  appears
that from May 1987 to August 1991, the court passed orders on  about  twenty
four dates  directing  for  issuance  of  non-bailable  warrants  of  arrest
against the accused but no compliance is noted against any order,  excepting
the one passed on August 30, 1991. 
However, no warrants, even of that  date,
are on the file. Mechanical orders  continued  to  be  passed  in  the  same
fashion till April 2000 and then suddenly on  May  8,  2000  the  order  was
passed for issuance of non-bailable warrants and  processes  under  Sections
82 & 83 of Code of Criminal Procedure against the accused, fixing  July  18,
2000 as the next date in the case.
The compliance of the order is  noted  on
May 11, 2000 on the order sheet. From the record it, however,  appears  that
process under Sections 82 & 83 was issued  on  May  11,  2000  only  against
accused 3, P.R. Muruthy son of  P.B.  Subbarao.
Thereafter,  the  case  was
listed on several dates, awaiting execution of  warrants  and  proclamation.
On June 20, 2001 the court took steps for recording evidence in  absence  of
the accused under Section 299 of the Code of Criminal  Procedure  and  then,
after the case was listed on three different dates,  on  November  5,  2011,
the examination-in-chief of the bus driver (PW1) was recorded under  Section
299 of the Code of Criminal Procedure.
On the same date, the examination-in-chief of the bus conductor (PW2) was recorded.
In their depositions  neither
PW1 nor PW2 (the bus driver and the bus conductor) named anyone  as  accused
and both of them said that they did not know the leaders  of  the  group  of
students that had attacked the bus. Again on the same day, that is  November
5, 2011, the Assistant Public Prosecutor made an application to  the  effect
that the other witnesses mentioned in the charge-sheet  were  passengers  in
the bus and their whereabouts are not known in view of the passage of  time.
Accordingly, it was prayed that the  evidence  of  the  prosecution  may  be
closed.
27.   Thereafter, the  Magistrate  submitted  the  record  to  the  Sessions
Judge, Guntur with the request to issue proceedings to  treat  the  case  as
long pending case. The Sessions Judge on December 26, 2011  gave  permission
to the trial judge to declare the case being  CC  No.  167/1991  as  a  long
pending case.
28.   However, soon thereafter on January 31,  2002,  the  Assistant  Public
Prosecutor moved an application under Section 321 of the  Code  of  Criminal
Procedure, seeking permission to  withdraw  the  case  in  the  interest  of
justice. A reference was made in the application to GO Rt  No.  1961,  dated
December 11, 2001  whereby  the  Government  had  decided  to  withdraw  the
prosecution  against  the  accused  persons.  On  a  consideration  of   the
materials on record, by an order dated January 31,  2002,  the  trial  judge
granted  permission  to  the  prosecution  to   withdraw   the   case   and,
accordingly, all the accused were discharged.
29.   A perusal of the court record shows that  during  the  entire  period,
service of summonses in the ordinary course were not effected  on  the  four
accused persons. Although a proclamation under Section  82  and  83  of  the
Code of Criminal Procedure was ordered to be issued,  the  record  does  not
show any publication having been made. However, the record  does  show  that
service was sought to be effected by beat of drum only on accused  3.  There
is nothing on the record to show that any attempt,  let  alone  any  serious
attempt, was made to serve the summons or the non-bailable warrants  on  any
of the accused persons.
30.   The purpose in adverting to the proceedings of the  criminal  case  in
detail is not to point out the  irregularities  in  the  proceeding.  Anyone
even with a passing acquaintance with the Code  of  Criminal  Procedure  can
see that gross irregularities were committed practically at  every  step  in
the proceeding. We  have  referred  to  the  proceedings  to  judge  whether
respondent No. 3 could be said to have any knowledge of the  case  in  which
he was cited as accused 4. From  the  record  of  the  case  which  we  have
discussed  in  detail  above,  we  find  it  very  difficult  to  hold  that
respondent No. 3 was even aware that in some record buried in the courts  at
Mangalagiri he was named as an accused and he was required to appear in  the
court in connection with that case.
31.   Apart from the record of the case, there  are  external  circumstances
that strengthen this view. From the resume of respondent No. 3, as noted  at
the beginning of the judgment, it may be seen that  before  his  appointment
as a judge of the High Court, he was  the  Additional  Advocate  General  of
Andhra Pradesh. If the case would have  been  within  his  knowledge  it  is
unimaginable that he would not have attended to it and got it concluded  one
way or the other.
32.   Here it may also be  noted  that  before  filing  this  writ  petition
before this Court the petitioners had made  a  representation,  both  before
the Chief Justice of India and the Law Minister, asking for the  removal  of
respondent No. 3 as a judge of the Andhra Pradesh High  Court  on  the  same
allegations. The representation  that  came  to  the  office  of  the  Chief
Justice of India received full consideration and the Chief Justice of  India
called for a report on the matter from  the  Chief  Justice  of  the  Andhra
Pradesh High Court vide  his  letter  dated  January  18,  2012.  The  Chief
Justice, Andhra Pradesh High Court made a  detailed  enquiry  and  submitted
his report dated February 7, 2012. In his report the Chief  Justice,  Andhra
Pradesh High Court came to the same conclusion as we have arrived at  on  an
independent appraisal of the record of the case. In paragraphs 29 and 32  of
the report, the Chief Justice stated as under:
      “29. It does appear that Justice XXX was unaware of  the  pendency  of
      the criminal case. I say this from  the  record  of  the  case,  which
      speaks for itself, and the contents of which need not be  repeated.  I
      also say this for another reason.


      32. In my opinion Justice XXX was truly unaware of the  criminal  case
      against him and he deserves to be believed when he says so.”


33.   In light of the discussion  made  above,  we  have  no  hesitation  in
holding  that  at  the  time  respondent  No.3  was  being  considered   for
appointment as a judge of the High Court, he was unaware of any  case  being
pending in which he was named as an accused and it is quite wrong  to  refer
to him as “an absconder  and  a  proclaimed  offender”  in  the  case.  This
finding leads to another and that is, it is not a  case  of  suppression  of
any material fact by respondent No.3 or at his behest. Here we wish to  make
it clear that had it been a case of deliberate and conscious suppression  of
material fact by respondent No.3  the  position  would  have  been  entirely
different. But that is not the case here.
34.   Now we propose to examine whether apart from respondent No. 3,  anyone
else, who could be in the position to bring the fact  to  the  knowledge  of
the High Court Collegium or  the  State  Government  or  the  Supreme  Court
Collegium or the Central Government, was aware of the pendency of the case.
35.   Mr. Shanti Bhushan submitted that the State Police had  submitted  the
charge-sheet against respondent No. 3 and hence, the State  Government  must
be deemed to be aware of the fact. The  submission  plainly  overlooks  that
the State Government is not a monolith and it does not function as a  single
person. The State Government functions in different  departments  manned  by
different people and simply because a  charge-sheet  was  submitted  by  the
State Police no conscious knowledge of the fact can  be  attributed  to  the
State Government.
36.   We have carefully gone through the record relating to the  appointment
of respondent No. 3 as a judge of the Andhra Pradesh High  Court.  From  the
record it is evident that none of the members  of  the  High  Court  or  the
Supreme Court Collegia was aware of  the  fact.  The  State  Government  was
equally unaware of the fact and so was the Central Government as is  evident
from the resume prepared by the Law Ministry as also the IB Report.
37.   This is not all. In 1993, respondent No. 3 was  a  candidate  for  the
post of the Member  of  the  Income  Tax  Appellate  Tribunal  and  in  that
connection he was interviewed by a Selection Committee headed by  a  sitting
judge of the Supreme Court. He was selected for appointment and  was  issued
an appointment letter dated September 8, 1995  as  judicial  member  in  the
ITAT. The appointment letter  was  undoubtedly  issued  to  him  only  after
police verification and nothing was mentioned even at that stage  about  any
criminal case pending against him. He did  not  accept  the  appointment  is
another matter altogether.
38.   From all the attending circumstances, it is clear  beyond  doubt  that
not only respondent No. 3 himself but practically no one was  aware  of  the
pendency of the case in which he was named as an accused.
39.   The question, therefore, arises can a fact that is unknown  to  anyone
be said to be not taken into consideration and can the consultative  process
faulted as incomplete for that reason. To our mind, the answer can  only  be
in the negative. To fault the  consultative  process  for  not  taking  into
account a fact that was not known at  that  time  would  put  an  impossible
burden  on  the  Constitutional  Authorities  engaged  in  the  consultative
process and would introduce  a  dangerous  element  of  uncertainty  in  the
appointments.
40.   In case it comes to light that some material facts  were  withheld  by
the person under consideration or suppressed at his behest then that may  be
a  case  of  fraud  that  would  vitiate  the   consultative   process   and
consequently the appointment resulting from it. But in  case  there  was  no
suppression and the fact comes  to  light  a  long  time  after  the  person
appointed has assumed the office of a judge and if the Members  of  the  two
Houses of the Parliament consider the discovered fact  sufficiently  serious
to constitute misbehaviour and to warrant his removal, then he may still  be
removed from office by taking recourse to the provisions of  Article  124(4)
or Article 217 read with Article  124(4)  as  the  case  may  be.  In  case,
however, the fact was unknown and there was no suppression of that  fact,  a
writ of  quo  warranto  would  certainly  not  lie  on  the  plea  that  the
consultative process was faulty.
41.   In light of the discussion made above, we  are  clearly  of  the  view
that no case is made out for issuing a writ of  quo  warranto  quashing  the
appointment of respondent No. 3 as the judge of Andhra Pradesh High Court.
42.   The legal issue raised by Mr. Shanti  Bhushan  is  answered  but  this
matter cannot be given a proper closure unless we also say  that  this  writ
petition professed to have been filed in public interest is,  in  our  view,
but a ruse to malign respondent No.3.
43.   In his report to the Chief Justice of India the Chief Justice,  Andhra
Pradesh High Court has made the following comment:
      “27. The incident occurred almost  30  years  ago.  The  case  against
      Justice Ramana was withdrawn almost 10 years ago. That  it  should  be
      raked up now is a little inexplicable. The case does not seem to  have
      been sensational in any manner whatsoever so  that  someone  would  be
      following it up. Therefore, it is a little odd  that  it  should  have
      suddenly surfaced now. It is possible that there is some reason behind
      digging up this case, but I am unable to fathom the motive.”

44.   What the Chief Justice said, in a highly restrained manner, about  the
representation addressed to the Chief Justice  of  India,  applies  more  to
this writ petition. The writ petition owes  its  origin  to  a  news  report
published in a Telugu daily newspaper called ‘Sakshi’ on December 27,  2011.
A translated copy of the report is enclosed as Annexure  P-11  to  the  writ
petition. The report is based on incorrect facts and is full  of  statements
and innuendos that might easily constitute the offence of  defamation  leave
alone contempt of court. After the news broke out, the petitioners  seem  to
have collected the record of the criminal case and filed this writ  petition
on that basis. The writ petition is drafted with some skill and it  presents
the facts of the criminal case in a rather twisted  way  in  an  attempt  to
portray respondent No.3 in bad light. The way the writ petition  is  drafted
shows that the petitioners are competent and experienced counsel.  Had  they
examined the records of the criminal case objectively  and  honestly,  there
was no reason for them not to come to the same conclusion as arrived  at  in
this judgment or as appearing from the report of the Chief  Justice,  Andhra
Pradesh High Court. It, therefore, appears to us that this writ petition  is
not  a  sincere  and  honest  endeavour  to  correct  something  which   the
petitioners truly perceive to be wrong but the real intent of this  petition
is to malign respondent No.3.
45.   It is indeed very important to uphold  the  “institutional  integrity”
of the court system as pointed out in  the  CVC  judgment  and  as  strongly
advocated by Mr. Shanti Bhushan, but it is equally important to protect  the
court from uncalled for  attacks  and  the  individual  judges  from  unjust
infliction of injuries.
46.   In light of the discussions made above, we  find  this  writ  petition
not only without merit but also wanting in bona fides. It  is,  accordingly,
dismissed with costs of Rs.50,000/- payable by each of the two  petitioners.
The cost amount must  be  deposited  in  a  fund  for  the  welfare  of  the
employees of the Andhra Pradesh High Court within four weeks from today.



                                        …..…………………………J.
                                        (Aftab Alam)




                                        …..…………………………J.
                                        (Ranjana Prakash Desai)
New Delhi;
February 4, 2013.


-----------------------
[1] (1993) 4 SCC 441
[2] (1998) 7 SCC 739
[3] (1992) 2 SCC 428
[4] (2009) 1 SCC 657
[5] (2009) 8 SCC 273
[6] (2011) 4 SCC 1

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